Federalism and Tort Reform

Federalism and Tort Reform
Ilya Somin • May 23, 2011 11:37 pm

The Hill has an interesting article about co-blogger Randy Barnett’s constitutional critique of GOP efforts to impose federally mandated tort reform on the states [HT: Instapundit]:

Opponents of a House medical malpractice bill are trumpeting an attack on the legislation from a prominent conservative lawyer.

Georgetown University law professor Randy Barnett accused the GOP of practicing “fair-weather federalism” on the malpractice bill, which would preempt state laws that conflict with its cap on some jury awards.

Barnett represents the National Federation of Independent Business in its lawsuit challenging the healthcare law’s requirement that most people buy insurance. Opponents of the malpractice bill say those conservative bona fides lend credibility to his criticism.

“I think that’s huge,” said Susan Parnas Frederick of the National Conference of State Legislatures.

NCSL says restrictions on malpractice suits should be left to the states. The House bill would set a limit of $250,000 on noneconomic damages and preempt state laws that have established higher caps. Some state constitutions also block the type of changes the bill would make. They would also be overridden.

“State court is an area for state law, not federal law,” Frederick said.

Although the article mistakenly labels Randy as a “conservative” (he is in fact an even more consistent libertarian than I am), I’m happy to see that his critique is having an impact. Hopefully, at least some Republican conservatives will begin to see that you can’t advocate strict limits on federal power with one hand while trying to impose sweeping federal control over state tort law with the other.

In this post, I explained why federally mandated tort reform is, in most cases, both constitutionally dubious and unnecessary. The better way to restrict abusive tort suits is through interstate competition combined with constraints on states’ ability to regulate conduct outside their borders.